Laying Off Employees By Race

May 25, 1986

The choice presented to the U.S. Supreme Court in its latest affirmative action case was between ruling all racial quotas in employment matters illegal and upholding a school board plan to lay off nonminority teachers before their minority colleagues with less seniority. It wisely chose neither alternative. The Reagan administration has been arguing that the Constitution forbids any employment quota, even one imposed to remedy a proven pattern of race discrimination. In fact, the Justice Department had gone so far as to suggest that the Supreme Court already went along with this far-reaching legal interpretation in an earlier case.

A lot of people thought the Justice Department`s declaration of victory was premature. And that has turned out to be the case. The justices apparently meant their own words differently from the way Atty. Gen. Edwin Meese read them. A majority of the justices in the most recent decision--it may even have been unanimous on this point--agreed that an affirmative action program need not be limited to individuals who had proven that they were personally harmed by a discriminatory practice.

That ought to settle that, even for the Justice Department. And it only makes sense that when a government body has been found guilty of racially discriminatory hiring practices it might be required to institute a quota system to bring the work force back into line with what it would have been if the government body had not acted unconstitutionally in the first place.

On the other hand, a bare majority of the justices found intolerable a Jackson, Mich., school board plan that violated seniority in layoffs in order to keep a certain racial proportion on the school faculty. There are several reasons why this, too, was wise.

Foremost among them is the fact that in Jackson, Mich., there had been no showing of intentional racial discrimination against minority job applicants. The affirmative action plan was instituted simply to change the racial balance on the faculty and, when layoffs were contemplated, to preserve the new proportions.

It is one thing to say that when a violation of the law and Constitution is proven with respect to a particular employer, an effective remedy can be imposed. It is quite another to say that racial quotas are acceptable even when there has been no proven, specific racial wrong.

A quota is a radical measure. It offends the principle of racial neutrality because it puts a burden on individuals simply because of their race. When it is imposed to redress a violation of law, it is justifiable simply because no other measure can bring things back to the situation that would have prevailed without illegal discrimination. But if this society tolerated the allocation of the burdens and benefits of society on the basis of race across the board, it would be on the road toward institutionalizing the very evil that affirmative action is meant to eradicate.

Another reason the court rejected the Jackson, Mich., plan was that it injures specific, identifiable individuals. As Justice Lewis Powell wrote in the leading opinion in the case, ``In cases involving valid hiring goals, the burden to be borne by innocent individuals is diffused to a considerable extent through society generally. Though hiring goals may burden some innocent individuals, they simply do not impose the same kind of injury that layoffs impose.``

You can detect a lot of discomfort in those sentences. The court seems to be saying that racial quotas are such bitter medicine that every effort must be made to minimize the pain they cause.

There is a related, practical reason why the court had to decide against an affirmative action plan that overrides seniority in layoffs. Justice Powell and his colleagues may have recognized that if quotas were upheld in this kind of case, the public mood might swing around to Atty. Gen. Meese`s view and reject them in all cases. Even the Supreme Court has to be concerned about how much the public will accept from its legal institutions.

The decision in the Jackson, Mich., case was more prudent than it was elegant or logically satisfying. But that is probably because there is no way neatly to express the need to abandon the ideal of governmental color-blindness on the way to making the ideal a reality.